[Cite as State v. Hall,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-170699 C-170700 Plaintiff-Appellee, : TRIAL NO. B-1607043

vs. : O P I N I O N. RANDY HALL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 24, 2019

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} The state secured these criminal convictions by the thinnest of margins—

indeed, of the 12 counts of the indictment that proceeded to trial, the trial court granted a

Crim.R. 29 acquittal on five counts, the jury returned a defense verdict on two, and the state

now concedes that the evidence does not support an additional count. The trial also hinged

on a credibility battle between the defendant and his accusers. In light of that backdrop, we

find that two interrelated errors deprived the defendant of a fair trial. First, the state

belatedly sprung an expert witness on the defense at trial without providing an expert report

as mandated by Crim.R. 16(K). And second, the prosecutor engaged in pervasive

misconduct during closing argument, demonizing the defendant as a “wolf” and “predator,”

and repeatedly vouching for the credibility of the accusers. Based on these errors, we

reverse the convictions and remand for a new trial on the remaining four counts.

I.

{¶2} In the summer of 2016, Randy Hall was living with his girlfriend, Meleaka

Porter, in an apartment on Harrison Avenue. Crammed into the apartment with the couple

were Ms. Porter’s six children, her mother, and Mr. Hall’s biological daughter, H.H. A few

doors down lived neighbor Chorquance Brown with her children, including daughter J.C.

The two families had amicable relations, with Ms. Brown’s daughter J.C. spending a fair

amount of time with Ms. Porter’s daughter, T.R. Mr. Hall would frequent the Brown

residence, play basketball with Ms. Brown’s older sons, and referred to Ms. Brown as

“Mom.”

{¶3} Things took a darker turn, however, when in August 2016 Ms. Brown’s

daughter, J.C., came forward with allegations of sexual abuse by Mr. Hall. Detective Jane

Noel, a veteran detective, led the investigation into these allegations. In the midst of the

2 OHIO FIRST DISTRICT COURT OF APPEALS

investigation process, other reports of abuse surfaced from both Ms. Porter’s daughter, T.R.,

and Mr. Hall’s daughter, H.H. These allegations culminated in an indictment of Mr. Hall on

12 counts of either rape or gross sexual imposition (“GSI”) regarding J.C., T.R., and H.H.

{¶4} Due to the absence of physical evidence, the trial focused upon testimony by

the victims and persons involved with the investigation. All three victims, J.C., T.R., and

H.H. testified. Also called to testify was Detective Noel regarding her investigation and

experience with child-sexual-abuse investigations. Additionally, Dr. Kathy Makaroff, a

child-abuse pediatrician who works with the Mayerson Center for Safe and Healthy

Children evaluating children suspected of physical or sexual abuse, testified as an expert

medical witness for the state.

{¶5} Mr. Hall took the stand in his own defense, where he theorized that T.R. and

H.H. were engaged in a conspiracy instigated by another of Ms. Porter’s daughters, who had

recanted her accusations against Mr. Hall before trial. To explain J.C.’s accusations, he

posited that she was retaliating after he had told her to stay away from H.H. because of an

altercation between the two girls.

{¶6} At the close of the state’s evidence and pursuant to Crim.R. 29(A), the defense

moved for acquittal based on insufficient evidence as to counts six, seven, eight, and nine of

the indictment (counts relating to rape of T.R.), which the trial court granted. Additionally,

the court, upon its own motion, acquitted Mr. Hall on count ten of the indictment (related to

rape of H.H.). The case ultimately went to the jury and, after deliberation, the jury returned

a verdict finding Mr. Hall guilty of counts one, two, and three for rape of J.C. and count four

for GSI of J.C. The jury also found him guilty of count 12 for GSI of H.H. Finally, the jury

found him not guilty of the two remaining counts of rape, counts five and 11 of the

3 OHIO FIRST DISTRICT COURT OF APPEALS

indictment (both pertaining to rape of T.R. and H.H.). Mr. Hall was ultimately sentenced to

ten years to life on each of the rape charges and five years for each of the two GSI counts.

{¶7} Mr. Hall now appeals from his convictions, asserting four assignments of

error. On appeal he challenges the sufficiency and weight of the evidence supporting his

convictions, the application of Ohio’s rape-shield statute to the exclusion of evidence in this

case, the admission of Detective Noel’s testimony despite the lack of an expert witness

report pursuant to Crim.R. 16(K), and finally, prosecutorial misconduct based on

statements made by the state during closing arguments.

II.

A.

{¶8} We begin with count 12 of the indictment, and Mr. Hall’s first assignment of

error. Given our disposition below, we only address this assignment of error insofar as it

relates to Mr. Hall’s conviction for count 12, GSI of H.H., and whether sufficient evidence

supported it. R.C. 2907.05(A)(4) requires that “[n]o person shall have sexual contact with

another, not the spouse of the offender, cause another, not the spouse of the offender, to

have sexual contact with the offender * * * when * * * [t]he other person * * * is less than

thirteen years of age, whether or not the offender knows the age of that person.” Sexual

contact is defined as “any touching of any erogenous zones of another, including without

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for

the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B). The jury was

instructed at trial that in order to find Mr. Hall guilty on count 12 they must “find beyond a

reasonable doubt that * * * [Mr. Hall] caused [H.H.] to have sexual contact with him * * *.”

The state acknowledges that, during trial, H.H. testified that Mr. Hall touched her vagina

and digitally penetrated her, but she did not testify that he caused her to have sexual contact

4 OHIO FIRST DISTRICT COURT OF APPEALS

with him. Thus, the state concedes in its appellate brief that “[Mr.Hall’s] conviction for

Count 12 was not supported by sufficient evidence and should be dismissed.” We accept the

state’s concession, and accordingly sustain Mr. Hall’s first assignment of error with respect

to count 12 and reverse his conviction on that count.

B.

{¶9} With count 12 resolved, we turn our focus to the third assignment of error,

relating to the admission of expert testimony by Detective Noel, which we ultimately find

dispositive. The trial court admitted Detective Noel’s testimony at trial as an “expert in

investigating child abuse and neglect,” and she offered several opinions in this vein. We

note that while the standard for reviewing the trial court’s admission of expert testimony is

for abuse of discretion, an error of law can constitute an abuse of discretion. Valentine v.

Conrad,

,

,

; see State v. Boles,

,

,

(2d Dist.) (explaining that trial

court could in fact abuse its discretion by committing an error of law). Defense counsel duly

objected to Detective Noel’s testimony, arguing that the state furnished no Crim.R. 16(K)

report.

{¶10} Crim.R. 16(K) requires that an expert witness must prepare a “written report

summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and

shall include a summary of the expert’s qualifications.” That report must be turned over to

the other side “no later than twenty-one days prior to trial” in the absence of good cause

shown that does not prejudice the other side. Crim.R. 16(K). The rule also contains a

simple remedy for a violation: “Failure to disclose the written report to opposing counsel

shall preclude the expert’s testimony at trial.”

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} This rule is one of fairly recent vintage, promulgated in 2010. The purpose of

the rule is straightforward, as reflected in its plain language and echoed by the Staff Notes:

“Failure to comply with the rule precludes the expert witness from testifying during trial.

This prevents either party from avoiding pretrial disclosure of the substance of expert

witness’s testimony by not requesting a written report from the expert, or not seeking

introduction of a report.”1 Our sister districts have explained that the purpose of Crim.R.

16(K) is to avoid “trial-by-ambush” scenarios. See State v. Walls,

,

(6th Dist.) (error to allow doctor’s expert testimony when testimony

exceeded scope of report). Supplying a Crim.R. 16(K) report alleviates “unfair surprise by

providing notice to the defense and allowing the defense an opportunity to challenge the

expert’s findings, analysis, or qualifications, possibly with the support of an adverse expert

who could discredit the opinion after carefully reviewing the written report.” State v. Fetty,

11th Dist. Portage No. 2011-P-0091,

, ¶ 36, quoting State v. Perry, 11th Dist.

Lake No. 2011-L-125,

, ¶ 55 (no prejudice to defendant when medical

records had been supplied, thwarting any undue surprise from medical expert’s testimony).

Providing the report in advance of trial affords the opposing party an opportunity to secure

its own expert in response, but even if it elects not to do that, it may well consult with an

expert on how to best cross-examine the other side’s expert. See Fetty at ¶ 37 (“The policy

behind these rules is to avoid ambush and thwarting of opposing counsel’s ability to

effectively cross-examine the expert.”).

1 A survey of Ohio appellate caselaw reveals that despite the 2010 changes to Crim.R. 16, some courts

continue to import the pre-2010 amendment test in evaluating reversal based violations of the rule. E.g., State v. Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014,

, quoting State v. Joseph,

,

(1995) (reversal for a violation of Crim.R. 16(K) requires “(1) the prosecution’s failure to disclose was a willful violation of the rule, (2) foreknowledge of the information would have benefitted the accused in the preparation of his defense, and (3) the accused suffered some prejudicial effect.”). Application of this test, however, disregards the 2010 changes to the rule, which adds the requirement of the Crim.R. 16(K) report and dictates that a “[f]ailure to disclose the written report * * * shall preclude the expert’s testimony at trial.”

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶12} No one disputes that the state failed to provide a Crim.R. 16(K)-compliant

expert report. The state points out, however, that it did tender an investigatory report that

documented Detective Noel’s investigation, but it faces two problems here. First, the

investigatory report (as best we can tell) never found its way into the record, which

precludes the state from seeking refuge in it now. Second, and more fundamentally, a world

of difference exists between an investigatory report (“I observed this during my

investigation”) and an expert report (“I’m qualified as an expert and here are my

opinions”).2 To its credit, the state does not pretend that the investigatory report actually

reveals any expert opinions. As a result, even if it were contained within the record, it would

not satisfy the basic requirements of the rule.

{¶13} At trial, the state qualified Detective Noel as an expert, and the trial court

recognized her as such and allowed her to offer a series of opinions over objections. Given

the absence of any expert report, Mr. Hall understandably emphasizes the rule’s mandatory

“shall” language and the simple remedy contained within the rule. Crim.R. 16(K).

Reviewing the admission of Detective Noel’s testimony under this framework, we agree that

it was error to allow her testimony.

{¶14} Once given the mantel of “expert,” Detective Noel proceeded to explain how

“normally” in sexual-assault cases against a child, “we have very limited physical evidence,

mostly due to a delay in reporting[.]” She offered her opinion that “normally” these cases do

not involve assault by a stranger but rather “it’s a trusted member of the family, a loved one,

a family friend who engages in this activity with the child.” She reiterated this point a few

2 Needless to say, not every investigating officer needs to be qualified as an expert, particularly if they offer testimony limited to the investigation. Once they stray beyond that and start venturing opinions, however, this can change the analysis, and here, the trial court required the state to qualify Detective Noel as an expert because she was doing exactly that.

7 OHIO FIRST DISTRICT COURT OF APPEALS

times and explained that the “child loves this person potentially, and the person engages in

this activity over a period of time.”

{¶15} Detective Noel also offered an opinion that “typically” children victimized by

sexual assault begin to convey information “bit by bit. They might disclose just a small

portion of the incident and then, as the child begins to feel more comfortable about telling,

they’ll disclose more.” That, according to her expert opinion, is “a typical reaction to most

children.” She further explained how children recall time, and that most children “are bad

about judging even how old they were at the time the abuse started.”

{¶16} The state also elicited, effectively, Detective Noel’s perspective on this case by

asking her “have you ever had a case that you do not feel was worthy of an investigation or

going forward.” Detective Noel agreed that she had: “Frequently, I’ve had cases that there

wasn’t enough corroborating evidence or there wasn’t enough substantiating evidence

coming from the other direction, and the case would not be prosecutable, so it is not

presented to be indicted.” Her investigations “take a rather lengthy amount of time,” and

“[m]aybe not half of them, but a good portion of them go for indictment.” But this case met

her standards for further pursuit, and after she wrapped up her investigation, Detective

Noel “sent [it] over to the Hamilton County Prosecutor’s office for consideration for

indictment.”

{¶17} Detective Noel’s opinions overlaid with the factual situation before the jury.

For example, Detective Noel rebuffed defense attempts to undermine her lack of

investigative efforts (for instance, failing to search for evidence in either of the locations

where the assaults allegedly occurred) by explaining that, as she had already opined, she

would not expect to uncover any evidence pertinent to the investigation. Time and again,

Detective Noel tied her opinions to the case at hand by showing how the children’s delayed

8 OHIO FIRST DISTRICT COURT OF APPEALS

reporting, the lack of physical or other evidence, and their close connection with Mr. Hall

comported with “normal” child-sexual-assault cases.

{¶18} Detective Noel’s testimony also helped shore up that of the state’s medical

expert (Dr. Makaroff), who testified that the results of J.C.’s medical examination were

normal. Dr. Makaroff explained that normal findings from such an examination could still

be consistent with allegations of sexual abuse, and the passage of time after a sexual assault

factors into whether there are visible signs of the assault when the child is examined.

Detective Noel essentially validated those points through her own testimony.

{¶19} Detective Noel was the state’s final witness and helped the state wrap up its

case. In closing argument, the state relied heavily on many of the points she articulated.

The state sought to blunt any concerns about H.H. by acknowledging that “[s]he may not

have the best recall of time,” and of course Detective Noel testified about that precise

subject. The state also brandished Detective Noel’s “vast experience” and utilized her

testimony to explain the lack of other corroborating evidence. After defense counsel

hammered the lack of evidence and other perceived investigatory inadequacies in closing,

the prosecutor came back in rebuttal, reminding the jury that “the experts came in and told

you, there’s typically not medical evidence in these cases * * * You had an expert come in

and tell you about that and verify that.” In short, Detective Noel’s opinions proved central

to the state’s case.

{¶20} Detective Noel’s opinions constitute expert opinions submitted without a

report in contravention of the plain language of Crim.R. 16(K). The trial court committed

error by allowing these opinions to reach the jury, and accordingly we must now evaluate

whether this error was harmless. See Crim.R. 52(A) (“[a]ny error, defect, irregularity, or

variance which does not affect substantial rights shall be disregarded.”); Walls, 2018-Ohio-

9 OHIO FIRST DISTRICT COURT OF APPEALS

329,

(“Having found that the trial court erred in allowing [the

expert] testimony, we must determine whether that error is reversible.”). The Ohio

Supreme Court has clarified that Crim.R. 52(A) requires first a determination that the right

affected by the error is “substantial” and then whether reversal is warranted because the

accused was prejudiced. State v. Morris,

,

,

. Evaluating prejudice requires examining “the error’s impact on the verdict and

the weight of the remaining evidence * * *.” Id. at ¶ 25. From the relevant caselaw, three

considerations emerge: 1) the defendant must suffer prejudice as a result of the admission of

the improper evidence, 2) the appellate court must believe that the error was not harmless

beyond a reasonable doubt, and 3) the court must excise the improper evidence and

evaluate the evidence remaining to determine whether a new trial is required. Id. at ¶ 27-

29.

{¶21} In determining whether Mr. Hall suffered prejudice by the admission of the

testimony, we note that here the state intended Detective Noel’s testimony “to carry great

weight with the jury.” See

. The state presented her as an accomplished expert

with 27 years of experience in child-abuse investigations, specialized training, and

commendations when introducing her testimony to the jury, and the state emphasized her

(and her opinions) throughout closing argument. Id. at ¶ 45 (introduction of doctor’s

credentials at trial emphasized the weight of his testimony with the jury). Moreover, her

testimony assumed importance because it bolstered the victims’ credibility by explaining the

lack of physical evidence and delayed reporting in this case, as she chronicled why she

would not expect to find physical evidence and why the victims delayed their reporting (all

of which dovetailed with her opinions above as well as those of the medical expert).

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} Without Detective Noel’s testimony, the jury might have considered the lack

of physical evidence in relation to the victims’ credibility in a different light. See State v.

McGhee, 11th Dist. Trumbull No. 2014-T-0106,

(“Dr. Melville’s

testimony regarding why female children often do not display physical signs of sexual

activity or trauma was extremely important to the state’s case.”). The same point holds true

for the impact of the delayed reporting. Id. at ¶ 20 (“Dr. Melville’s testimony regarding

delayed disclosure was vital to the state’s case.”);

(faulting the state for failing

to provide a report on “delayed disclosure” when that expert testified to that at trial). The

introduction of this testimony was vital, as the state’s entire case hinged on the credibility of

the victims. See State v. Kaufman,

,

,

(7th Dist.) (“[I]t is well established that expert testimony that bolsters a victim’s

credibility is permissible.”); McGhee at ¶ 20 (expert testimony “may have significantly

buttressed [victim’s] credibility, to McGhee’s prejudice.”).

{¶23} We also note that the weight that expert testimony carries with the jury is

fundamentally different than that of lay testimony (particularly when the expert is a police

officer), and countering such testimony requires unique considerations, of which defense

counsel was deprived in this instance. See State v. Harris,

, 2015-Ohio-

166,

(“[G]iven the weight the jury would likely have assigned to [the

expert’s] testimony, a reasonable juror would be inclined to view with suspicion [the

defendant’s] own testimony * * *.”);

, citing State v. Holt,

,

(1969) (“Because of the witness’s educational background and his apparent

prestige, his testimony undoubtedly made an impression on the jury and was accorded

greater weight that it was entitled to.”). Without access to the content of her opinions

11 OHIO FIRST DISTRICT COURT OF APPEALS

beforehand, defense counsel was forced to respond on the fly. In sum, the defense was

prejudiced by the denial of the opportunity to fully challenge Detective Noel’s testimony.

{¶24} Furthermore, this error was not harmless beyond a reasonable doubt.

Detective Noel’s testimony bolstered the children’s testimony by lending it credibility in a

case without any physical evidence against the defendant, thus likely impacting the jury’s

verdict. See

(psychologist’s opinion that defendant was feigning mental

illness created a “reasonable possibility that * * * testimony had an impact on the verdict

and was not harmless beyond a reasonable doubt.”). Acquittal was granted on five counts of

the indictment at the close of state’s evidence precisely because of insufficient evidence, with

the state conceding on appeal that Mr. Hall should be acquitted of count 12 for the same

reason. In other words, this is not the prototypical case where evidence of guilt is strong,

and we can have confidence that the error did not impact the outcome.

{¶25} Excising this testimony and reviewing the strength of the remaining evidence,

the state’s case depended on which witness was more credible, J.C. or Mr. Hall. Thus,

admission of Detective Noel’s expert testimony likely colored the jury’s ability to properly

weigh the credibility of the witness. See id. at ¶ 43 (“Because of [the expert’s] improperly

admitted testimony, the jury was unable to properly weigh credibility.”).

{¶26} Both the Sixth and Eleventh Districts have recently reversed convictions in

sexual-assault cases for allowing experts to testify beyond the bounds of their reports (Walls

and McGhee). We find their reasoning persuasive, and note that, at least in those cases, the

defense received an expert report of some fashion. No such report was tendered here,

magnifying the extent of the error.

{¶27} We also note another distinction with Walls and McGhee that renders this

case even more suited for reversal—pervasive prosecutorial misconduct during the closing

12 OHIO FIRST DISTRICT COURT OF APPEALS

arguments. The Ohio Supreme Court has instructed us, in evaluating the harm, that “the

actions of a prosecutor may combine with an evidentiary error to cause greater impact.”

Morris,

,

,

. That certainly rings

true here, and leads us to Mr. Hall’s fourth assignment of error. In his fourth assignment of

error, Mr. Hall advances a claim of prosecutorial misconduct based on comments during

closing arguments.

{¶28} Initially, we note that no objections were raised below to the closing

argument, which normally confines our review to plain error. State v. Fudge, 2018-Ohio-

601,

(10th Dist.); Crim.R. 52(B) (“Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court.”). Here, however, we consider not whether the fourth assignment of error stands on

its own, but rather its impact on the third assignment of error.

{¶29} We accordingly turn to the closing argument. Reviewing a challenge of

prosecutorial misconduct in closing argument requires evaluation of whether the comments

were improper and prejudicial to the accused’s substantial rights. State v. Williams,

,

,

, ¶ 44. Prosecutorial misconduct

determinations require that “on the record as a whole, the misconduct can be said to have

deprived the appellant of a fair trial.” State v. Hunter, 1st Dist. Hamilton Nos. C-140684, C-

140704 and C-140717,

. On appeal, Mr. Hall draws our attention to the

following discourse by the prosecutor during closing argument:

This defendant, this predator, told you that he is the victim of a conspiracy

of little girls. * * * Do not be fooled. [Mr. Hall] is a wolf and he is the

predator. He raped [J.C.] by raping her with his penis. He raped her

vaginally by penetrating her vagina with his penis. He did this at her house. *

13 OHIO FIRST DISTRICT COURT OF APPEALS

* * He forced her to touch his penis with her hand. That’s rape, gross sexual

imposition.

***

Predators like his man, Randy Hall, pick their victims wisely so there isn’t

corroboration. He knows how to deal with these girls. He was nice to them,

but also sort of threatening and controlling. He chose easy targets.

***

After reviewing the evidence and applying the law, justice demands that this

defendant, this predator, be found guilty of these charges. Any verdict other

than guilty would not be reasonable, it would defy common sense, and it

would be contrary to your instructions.

{¶30} In evaluating these remarks, we are reminded that “[p]rosecutors serve a

special role in our justice system requiring them to adhere to the highest standards and to

avoid improper arguments, insinuations, and assertions calculated to mislead the jury.”

State v. Freeman,

,

(1st Dist. 2000), quoting State

v. Fears,

,

(1999) (Moyer, C.J., concurring in part and

dissenting in part). Therefore, a “prosecutor should not invade the jury’s realm by

rendering a personal belief regarding guilt.” State v. Simmons,

,

, ¶ 77 (1st Dist.), citing State v. Smith,

,

(1984). While

we acknowledge that prosecutors are afforded some latitude in closing, this leeway crosses

the line when a prosecutor “deliberately saturate[s] trials with emotion.” State v. Keenan,

,

(1993) (“[P]rosecutor’s histrionic approach to this

case crossed the line that separates permissible fervor from a denial of a fair trial” by

expressing opinion about the guilt of the defendant). We have little hesitation in finding

14 OHIO FIRST DISTRICT COURT OF APPEALS

these comments improper because they are in the same vein of comments that we have

repeatedly deemed inappropriate.

{¶31} Over a decade ago, in State v. Burrell, 1st Dist. Hamilton No. C-030803,

, we faulted this prosecutor’s office for calling a defendant a “psychopath” in

closing argument, and emphasized that this was not an isolated misstep: “We agree that the

prosecutor’s comments went beyond zealous advocacy into the realm of the patently

improper. Yet again, we caution the state about using these tactics.” (Emphasis

added.) (Citations omitted.) Id. at ¶ 25. That message has apparently not resonated, as we

faced essentially the same issue several years later in Simmons, where this court explained

that continued reference to a defendant as an “offender” during closing arguments

insinuated the prosecutor’s belief regarding the defendant’s guilt and was improper.

Simmons at ¶ 77. (We did not grant relief in either Burrell or Simmons in light of the

overwhelming evidence in those cases.). We fail to understand why prosecutors must resort

to improper name-calling during closing argument rather than letting the strength of their

evidence do the talking.

{¶32} Other courts in Ohio have shared our concern. The Ohio Supreme Court

found references to the defendant as a “thug” and “hardnosed goon” improper in other

circumstances. State v. Liberatore,

,

(1982), fn. 9

(prosecutorial misconduct when prosecutor “characterized the defendant in derogatory

terms clearly designed to inflame the jury.”). Even use of the word “predator” once during

closing argument constituted improper conduct according to the Fourth District. State v.

Canterbury, 4th Dist. Athens No. 13CA34,

, ¶ 24 (comment improper but

not prejudicial in the face of other evidence before the jury).

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶33} There can be little question, reading the closing argument as a whole, that the

prosecutor’s deliberate, and repeated, invocation of these terms was designed to “inflame

the jury,” see

, and to “deliberately saturate” the trial with emotion.

. Nevertheless, the state insists that the terms “wolf” and “predator” fell

within permissible bounds under the circumstances. The state largely points to Simmons,

endeavoring to distinguish “offender” (which has a legal connotation) with “predator”

(which the state contends does not). This is misguided for two reasons. First, contrary to

the state’s argument, the term “predator” has certain legal connotations which denote the

word to mean someone convicted of a sex-related crime and implicates guilt. For example,

under Ohio’s previous sexual-offender-classification framework, Megan’s Law (former R.C.

2950.09), the highest level of a sexual-offender classification was “sexual predator.”

Additionally, this term has a similar colloquial connotation, as one need look no further

than the title of the show “To Catch a Predator” to appreciate the point.

{¶34} Second, and more fundamentally, the state cannot demonize (and even

dehumanize) a defendant with this type of name-calling in argument. As noted above, such

language invites the jury to make its decision based on emotion rather than facts, and we see

no purpose for such language in a courthouse erected to serve the ends of justice and the

search for truth. Notably, the state fails to identify any case where an Ohio court has upheld

the propriety of terms like “wolf” and “predator” during the course of closing argument.

{¶35} Considering the entire closing argument in context only reinforces our view.

In addition to the prosecutor’s comments labeling Mr. Hall a “predator” and a “wolf,” the

prosecutor engaged in improper vouching. Recall, without physical evidence at hand, this

case involved a credibility battle between Mr. Hall and his accusers. In closing, the

prosecutor vouched for the credibility of the accusers by assuring the jury that they lacked

16 OHIO FIRST DISTRICT COURT OF APPEALS

the capacity to lie. Such statements thus implied that the prosecutor knew facts outside the

record about the mental proclivities of these witnesses.

{¶36} Nor were these statements accidental, as the prosecutor drove the point home

multiple times:

And the [defense counsel] wants to talk about credibility. Who has the

motive to lie in this case? This defendant right here, Randy Hall. Not these

little girls. They don’t have the capacity to continue on this year-long

conspiracy against him. Give me a break.

***

You saw these girls. They do not have the capacity to carry on three

independent accounts of sexual abuse by this defendant for over a year.

***

[The girls] came in here and did the best of their little girl brain ability to tell

you what he did to them. They don’t have the capacity to form a conspiracy

against poor victim Randy Hall.

Prosecutors must not vouch for the credibility of witnesses. State v. Williams,

,

(1997) (“It is improper for an attorney to express his or her personal

belief or opinion as to the credibility of a witness or as to the guilt of the accused.”); State v.

Myers,

,

,

(“It is improper for a

prosecutor to vouch for the credibility of a witness at trial.”); State v. Wilson, 1st Dist.

Hamilton No. C-000670,

, *7 (April 19, 2002) (“[T]he prosecutor’s act of

personally vouching for the credibility of the state’s witnesses was an invasion on the

province of the jury * * * it was clearly improper and constituted misconduct.”).

17 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} Although Mr. Hall did not object to the closing, the misconduct “still form[s]

part of the context in which we evaluate the effect on the jury of errors that were not

waived.” See Keenan,

,

. This brings us back to

Detective Noel’s testimony.

{¶38} In closing, the prosecutor returned to Detective Noel’s testimony, reminding

the jury that: “Detective Noel told you about her vast experience and how she would not be

able to get a viable crime scene or evidence * * * yet, [Mr. Hall’s] going to ask you to just

completely disregard that.” The state also played up the significance of the expert

testimony, and of course Detective Noel’s opinions provided an important corroboration for

those of the medical expert. Closing argument thus brings about the confluence of Detective

Noel’s expert testimony with the litany of problematic statements, all of which we must

consider against a case without an overwhelming evidentiary foundation.

.

(“Without overwhelming evidence of guilt, we cannot know what the verdict might have

been had not the prosecutor clouded the jury’s vision with improper tactics.”).

{¶39} When the jury’s determination of guilt rests solely on the question of which

testimony they believed, the victims’ or Mr. Hall’s, the prosecutor’s conduct (denigrating

the defendant, calling him a “wolf” and a “predator,” vouching for the state’s witnesses)

compounded the problems inherent in admitting Detective Noel’s testimony. And under the

circumstances, we cannot say with any degree of confidence that the jury’s determination

here was based on the actual credibility of the witnesses rather than the errors at trial

because the errors were so significant in terms of their impact on credibility. Thus, Mr. Hall

was prejudiced by the admission of the expert testimony, it is not clear beyond a reasonable

doubt that this error did not affect the outcome, and the strength of the remaining evidence

was no doubt buttressed by Detective Noel’s testimony. In sum, under these circumstances

18 OHIO FIRST DISTRICT COURT OF APPEALS

the admission of Detective Noel’s testimony constituted prejudicial, rather than harmless,

error.

III.

{¶40} For all of the foregoing reasons, we sustain Mr. Hall’s first assignment of

error only insofar as it relates to count 12, and he is therefore discharged on that count. We

also sustain his third assignment of error and remand for a new trial on the four remaining

counts (one through four). Based on our disposition, we find that the remaining

assignments of error are moot and we do not address them.3 See App.R. 12(A)(1)(c).

Judgment reversed and cause remanded. CROUSE, J., concurs. ZAYAS, P.J., concurs in judgment only.

Please note:

The court has recorded its own entry this date.

3 We note that Mr. Hall’s second assignment of error pertains to the effect of the rape-shield statute, which is an issue presently pending before the Ohio Supreme Court. State v. Jeffries,

,

(8th Dist.), appeal accepted,

,

,

. The trial court, in the retrial, should consider the impact of the Supreme Court’s decision if it is available by the time of trial.

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